Mother refused residence appeal

family life

The mother of a three year old girl has been refused permission to appeal against an order that her daughter be sent to live with her father.

In the Matter of B (A Child) concerned ‘A’, who had lived with her mother most of her life but had enjoyed regular contact and a “good relationship” with her father since her parents had separated. Unfortunately, her parents had fallen out over the issue of ‘staying contact’ – that is to say, overnight visits. They became embroiled in two years of litigation, spread over 17 separate hearings.

The courts first ordered the mother to allow overnight visits in August 2013, but none actually took place for another year because both parents disputed the terms of the order. The mother sought a delay until she had fully weaned her daughter and the father objected to this. Eventually a judge ordered the overnight contact to begin in September last year, increasing to two nights In October and then three nights, with additional time during the school holidays as well when the child was older.

Initial visits took place but the mother then claimed that A became distressed afterwards, and recorded a series of short videos which she claimed demonstrated this.

In the Court of Appeal, Lady Justice Black explained:

“The mother wrote to the court setting out the impact, as she saw it, of the stays on A. She said that impact continued for two or three days after the child’s return, although she acknowledged that A went willingly at the start of the contact with the father.”

She insisted that she would no longer follow the contact order and wanted the court to review it, in the meantime confining the father’s contact with A to daytime visits.

In response the father applied for enforcement. In court, the Judge issued a revised order, specifying initial assessment by a Cafcass officer. If the officer issued no objection, overnight visits would then restart. A notice was attached to the order warning the mother of consequences if she did not meet her obligations.

The Cafcass officer observed nothing untoward, noted Lady Justice Black.

“A was seen to be relaxed, happy and very comfortable with the father and, accordingly with CAFCASS’s blessing left with him for an overnight stay.”

Later, the mother disputed plans for A to visit her father at Easter last year, saying she would not cooperate. The father once again applied for enforcement. A fresh order with an accompanying penal notice was issued at a hearing which the mother did not attend.

She later claimed she had not been aware of the hearing and the case rumbled on.

Lady Justice Black explained:

“In July [2015], at the hearing, the judge heard evidence from the parents, the maternal grandmother and also the CAFCASS officer. She recorded that the mother had breached court orders in relation to staying contact on four occasions and that the last occasion had been as recently as 1st April and had been in the face of a penal notice.”

The mother argued that A was too young to spend period of more than a few days away from her and became stressed and anxious when she did so. She said she could not reassure the judge that she would obey future contact orders, and would in fact continue to breach them if she believed doing so was in her daughter’s best interests.

The mother argued instead for a much slower progression to increasing amounts of contact with her father. But the Cafcass officer took a different view, believing that the girl would benefit from greater contact with her father and his extended family at that time.

The Judge rejected the mother’s argument, concluding that A had not been distressed by the visits to her father but instead by the continuing dispute between her parents

Lady Justice Black said:

“…it seems to me the judge was entitled not to accept the mother’s evidence that the overnight says were causing extreme distress. She was entitled to find there were signs that the child was becoming unsettled because of the situation between the parents and over contact and that there was a significant risk in future she become further unsettled and damaged emotionally if matters were not resolved now.”

A’s relationship with her father was at risk if the situation continued the earlier Judge had concluded, ruling that A should be sent to live with her father given the mother’s history of disobeying court orders and apparent determination to prolong the dispute.

Unsurprisingly, the mother sought to appeal this ruling. Her counsel argued that changes of residence should be reserved for serious cases of ‘implacable hostility’ towards the parent without day-to-day care of the child.

But the Court of Appeal was not convinced an appeal would have any chance of success. Lady Justice Black declared:

“This was a case in which the child had spent time in the care of the father, was familiar with the home in which he lived and had a good relationship with him. This was not a child going to the care of strangers.”

She continued:

“The judge carried out an assessment of the history, she evaluated the impact of the change, she exercised her judgment after seeing the witnesses and considering the history, and the Appeal Court does not interfere readily with a value judgment formed by the judge after carrying out that process.”

The ruling can be read here.

Image by David Clow via Flickr

Stowe Family Law Web Team

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Luke - January 5, 2016 at 9:05pm

I think this is a rare case – the mother expected the court to back down because she’s a mother and courts in practice always seem to give way to them on residency – and I think that would have been what would have happened here.
I suspect the reason that it didn’t is the mother said this:

“She said she could not reassure the judge that she would obey future contact orders, and would in fact continue to breach them if she believed doing so was in her daughter’s best interests.”

She basically overplayed her hand and threatened to humiliate the Judge and make the whole process look like a sham (which I have to say I think it often is when it comes to who gets residency) – a very risky manoeuvre which massively backfired…

Gregory - January 5, 2016 at 11:35pm

99% of mothers get away with it and in many cases are praised for being ‘suitably protective’. Nothing will change until legal shared parenting is finally made law.

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